Abolishing Immigration Prisons

Hernández, César Cuauhtémoc García, Boston University Law Review

INTRODUCTION

Imprisonment today is a central feature of immigration law enforcement.1 It should not be. This Article details immigration imprisonment's reach, lays bare its origins and continued utility as a means of racial subordination, identifies its many adverse consequences, and calls for a wholesale reimagining of how the United States conceptualizes migration and regulates migrants' lives. In short, this Article is the first to call for the abolition of immigration imprisonment in the United States.2

Despite being so common today, immigration imprisonment is a historical anomaly. After relying on confinement in the ugly years of the Chinese exclusion era,9 the United States did not lock up migrants for migration-related activities for much of the twentieth century.10 That historical norm shifted suddenly and radically in the mid-1980s. As part of the "War on Drugs," Congress and various presidential administrations expanded the authority and capacity of immigration officials to detain migrants.11 More recently, the federal government's appetite for immigration imprisonment has been bolstered by fears of terrorism, first by the 1995 bombing of a federal building in Oklahoma City, and later by the September 11, 2001 attacks.12 Whether motivated by fears of illicit drug activity or terrorism, there are few signs that this appetite for imprisoning migrants is abating. Indeed, under President Barack Obama, DHS shuttered facilities reserved for family units, only to open others five years later.13 States have followed suit in response to increasing concerns about growing migrant populations-in particular Latino migrants- by expanding the number of migration-related crimes and bases for imprisonment on the books.14

While each of these instances of immigration imprisonment expansion arose from a different political, economic, and cultural context, they all share one salient feature: racism. To varying degrees, racist currents motivated immigration imprisonment's creation and each episode of its growth. In a pattern that has not abated since the 1980s, people racialized as nonwhite have consistently been imprisoned for migration-related activity. That history alone is sufficient to cast a shadow of immorality on a practice as widespread as immigration imprisonment now is, and as coercive as forcible confinement necessarily must be. But as is typical of other incidents where racism has turned into policy, immigration imprisonment does not exist in a vacuum. Immigration imprisonment responds to racialization as much as it produces racialization. Indeed, immigration imprisonment marginalizes migrants of color by rendering them vulnerable to physical and psychological abuse and demonizing them through the very act of confinement.15

Immigration imprisonment also operates as a means of class-based exploitation. The bodies of poor people surrounded by barbed wire are turned into sources of extraordinary financial and political benefits for scores of governmental and nongovernmental actors. From the politicians who point to the steel and concrete of secure facilities to tout their accomplishments, to the private prison corporations that earn millions of dollars for housing immigration prisoners on behalf of ICE, USMS, or the BOP, immigration imprisonment is propped up by a large number of diverse, highly invested individuals and organizations.16 The end result is that immigration imprisonment brings substantial material and political benefits to the most privileged members of our society while denying some of the least privileged members access to their basic liberties. …

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